Benjamin Duranske points to the very interesting Virtual Property Rights Case. Some of this should sound familiar:
...Soon, wealthy avatars were taking the form of "metaverse speculators" buying in bulk, driving up the cost of virtual land and, in some cases, developing it for a tidy profit. The stakes were high and, to some, there seemed to be a bubble forming, mirroring the frothy bull market for real property investment that had taken place offline. Meanwhile, the real world owners of Third Life were becoming more wealthy than they had ever dreamed. The incremental cost of strategically creating and introducing additional parcels of virtual land to Third Life was essentially zero, and there were always eager buyers...
If that doesn't sound familiar, then you haven't been in Second Life - or if you have, you've been spending your time in those brain-numbing camping chairs. It provides a platform to discuss the issues without having to write of Linden Lab and Second Life directly - but it is all very tongue in cheek. This is a reality in Second Life today - enough so that Linden Lab posted Rates of Mainland Supply. How real is that?
Virtual, Artificial or Real?
Whether it is a virtual reality or not is up for grabs - but by a virtual reality what do we mean? What is virtual about the reality? And where did 'virtual reality', as a noun, come from? The original name, artificial reality, is less confusing in this regard - in an artificial reality, there is artificial property. Is artificial property real? Are artificial preservatives real? That simple change in name has had pretty confusing results - consider the definitions of virtual versus the definition of artificial. In a Thesaurus, the only link between artificial and virtual is - you guessed it - 'virtual reality' & 'artificial reality'.
Why didn't artificial intelligence become virtual intelligence? Why are they 'virtual worlds' instead of 'artificial worlds'? The answer is, more than likely, Science Fiction. Like most phrases that gain popularity over others, it may have been a move to make the concept more attractive - as Free Software spawned Open Source1. Another example is the word 'hack', which was originally used to describe a creative solution to a problem - but now is synonymous with the defacing of websites, among other things.
Words do have a certain power. If we replaced 'virtual' with 'artificial' in all of these discussions related to property, would there be a question as to whether items in synthetic worlds2 exists? Consider what Edward Castronova has written on the topic:
I would argue that these processes of value creation have advanced so far, even at this early date, that almost everything known as a "virtual" commodity - the gold piece, the magic helmets, the deadly spaceship, and so on - is now certifiably real. Indeed, as I argued in the introduction, the term virtual is losing its meaning. Perhaps it never had meaning. The things happening online have always been literal human things; there was never anything metaphorical, as-if, or subjunctive about them. At first it may have been convenient in many ways to think of networked human interaction as only a model of the real thing. Now, however, and specifically in the arena of synthetic worlds, the allegedly "virtual" is blending so smoothly with the allegedly "real" as to make the distinction increasingly difficult to see. There's nothing revolutionary in this, though. It is merely a recognition that these things were always as real as anything else in the human culturesphere.
Perhaps the naming of these worlds is the core of the problem. Because something exists on a piece of computer hardware somewhere doesn't make it less real - ask the MPAA, the RIAA and the BSA. The concept of copyright is so real that children have been forced to taste it. But once you talk about property in a legal sense, things start to get a little strange.
Web Hosting with Property Rights?
Its no secret that 'virtual land' in Second Life is actually 3d web hosting - but what does that really mean? Lets consider the likenesses:
- Regular web hosting doesn't have visible boundaries, but those boundaries exist through an IP address and a designation on a server - even when the server hosts more than one website.
- Web hosting has service charges, just as 'virtual land' in Second Life does.
- Access to a domain you own can be restricted, enforcing a form of 'privacy' for the 'owner' (web hosting customer).
- There are limits to what one can do within web hosting, just as in Second Life. In web hosting, it is megabytes and bandwidth. In Second Life it is the prim limit and number of people one can have in a region at the same time.
In Second Life, though, things get a little more tangible. Lawrence Lessig explains this in the context of American Law with this excerpt from Free Culture: The Nature and Future of Creativity
At the time the Wright brothers invented the airplane, American law held that a property owner presumptively owned not just the surface of his land, but all the land below, down to the center of the earth, and all the space above, to "an indefinite extent, upwards."1 For many years, scholars had puzzled about how best to interpret the idea that rights in land ran to the heavens. Did that mean that you owned the stars? Could you prosecute geese for their willful and regular trespass? Then came airplanes, and for the first time, this principle of American law"deep within the foundations of our tradition, and acknowledged by the most important legal thinkers of our past"mattered. If my land reaches to the heavens, what happens when United flies over my field? Do I have the right to banish it from my property? Am I allowed to enter into an exclusive license with Delta Airlines? Could we set up an auction to decide how much these rights are worth? In 1945, these questions became a federal case. When North Carolina farmers Thomas Lee and Tinie Causby started losing chickens because of low-flying military aircraft (the terrified chickens apparently flew into the barn walls and died), the Causbys filed a lawsuit saying that the government was trespassing on their land. The airplanes, of course, never touched the surface of the Causbys' land. But if, as Blackstone, Kent, and Coke had said, their land reached to "an indefinite extent, upwards," then the government was trespassing on their property, and the Causbys wanted it to stop.
The Supreme Court agreed to hear the Causbys' case. Congress had declared the airways public, but if one's property really extended to the heavens, then Congress's declaration could well have been an unconstitutional "taking" of property without compensation. The Court acknowledged that "it is ancient doctrine that common law ownership of the land extended to the periphery of the universe." But Justice Douglas had no patience for ancient doctrine. In a single paragraph, hundreds of years of property law were erased. As he wrote for the Court, [The] doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.
In Code: Version 2.0
In version 1.1[of Second Life], there was a fairly major change to the physics of the land. Whereas before users were free to teleport anywhere, now, to avoid harassment, owners of land could decide whether others could "trespass" or not - either by setting a default to grant or deny access, or by adding a list of people who were free to visit. These restrictions, however, applied only to the first 15 meters above the property. Beyond that, anyone was free to fly, even if the owner didn't want them on the property...
...But notice the important difference. In real space, the law means you can be penalized for violating the "high/low" rule. In Second Life, you simply can't violate the 15-meter rule. The rule is part of the code. The code controls how you are in Second Life. There isn't a choice about obeying the rule or not, any more than there's a choice about obeying gravity.
So code is law here. That code/law enforces its control directly. But obviously, this code (like law) changes. The key is to recognize that this change in the code is (unlike the laws of nature) crafted to reflect choices and values of the coders.
This aspect is a staging point for much discussion regarding a world which exists on silicon - where some can (and do) argue that because it can be done within the world, it is not illegal or even unethical4. This is where the real meat of the argument is - where policy of the world is considered to be a matter of 'what is possible through code'. There are community standards and Terms of Service, but the enforcement of the standards and Terms of Service is not demonstrably consistent.
Enter real Law, which crosses international borders to protect Copyright - something which residents of Second Life have implicit in their creations - and mesh that in with the code that protects user copyright. Its quite real - Eros vs. John Doe demonstrates that.
That 'virtual property' is grandfathered in by copyright law, but what about the metaphor of land? That is underway in another case which Benjamin Duranske posted about recently - and where some interesting documents were requested:
1. All documents discussing, referencing or related to the use of “metaphors” or “analogies” with regard to land ownership in Second Life.
2. Documents sufficient to identify each person and/or entity who was told or that it was disclosed to that “selling land free and clear”, selling “title”, “own virtual land” and/or any other statements made by Defendants with regard to virtual land were metaphors or analogies and/or truly meant “license to computing resources.”
3. All documents disclosing or supporting the contention contained in Paragraph 48 of Defendant’s Answer that the references to selling “title” are metaphors or analogies to the concept of ownership of real property.
97. All documents and/or communications discussing, referencing, or related to Defendants offering “virtual land” for “rent” or “lease.”
Is this the death of the 'virtual land ownership' metaphor that we see on the horizon? It could be. The Court will attempt to uphold the Law on that - and again, that brings us back to the Virtual Rights Case, where we started - and where than article ends (you have to read the article to get the context):
Questions:
Do you believe that such a contract of adhesion is enforceable?
Do you believe that virtual property matters should be played out in a virtual court as opposed to a real world scenario?
Should real property law concepts such as adverse possession apply in virtual property environments?
Suppose Aria’s “surveying spider” was illegal. Was Third Life right to cancel her account entirely and seize her property?
Property Law and... web hosting? I'm not a lawyer, I'm just a keenly interested observer - but here are my responses:
- Regarding the contract of adhesion: Contracts are superceded by Law, since Law is the 'third party' by which contract disputes are arbitrated. Therefore, the question is what the arbitrator - Law - thinks of the balance of the contract. Fortunately, we have some precedent in a similar context, but it can't possibly be that cut and dry in every context.
- Costs of litigation make a good case for a 'virtual court', but costs of litigation can also be decreased by good policy and good enforcement of policy within code. I say - settle it before it gets to court by enforcing Law through code and policy, as demonstrated by the parallel with property rights made by Lessig.
- Real property? If the metaphor of 'virtual land as property' in Second Life is upheld in a legal sense, the concepts of Law such as adverse possession would have to apply. If, however, the metaphor of 'virtual land as property' in Second Life is not upheld, then there can be no adverse possession since there really is no 'possession' other than that of Linden Labs. If property law applies there, wouldn't it be a matter of tenancy? And if tenancy is the issue, there is plenty of contract law out there around the world which will need to be negotiated.
- 'Illegal' in what sense? Illegal in the established Laws, or implicitly in the Code, or in the Terms of Service/Community Standards? Are we talking about 'virtually illegal' here? The answer here depends on whether 'virtual land as property' is upheld.
Of course, these are my thoughts on this - the Courts have a tendency to flex their muscles, proving laypersons and legal experts wrong based on arguments presented.
It does seem clear to me, though, that the switch from 'artificial reality' to 'virtual reality', which lead to 'virtual world', has caused all sorts of confusion. The time spent in a 'virtual world' is as real as the time spent elsewhere. The question of the value of emotional investment is brought to the fore in Is This Man Cheating on His Wife?, and it is a sticky situation - but it demonstrates that there is an emotional investment associated with the investment of time. Copyright, which is probably as virtual a property right as one can have (along with Patents), is demonstrably real in Second Life - but Second Life allows that whereas other 'virtual worlds' do not.
I don't know about you, but I see little that is 'virtual' in all of this. Issues such as this will touch Internet Governance in many ways, as well as international law including tort Law related to privacy. It will be interesting to read the history of how this plays out as it happens... or 10 years from now, looking back.
1 I'm not trying to start a Holy War here, but the history of the phrase 'Open Source' comes from making 'Free Software' more attractive to companies. In all the battles waged on this, that does remain unquestioned.
2 This is what Edward Castronova called them. Is synthetic oil real?
3 Lawrence Lessig, Code: Version 2.0
4 An example of this is the claim of 'fictional exchanges', or even Nicholas Portocarrero stating, 'In fact, even if I HAD taken the money to buy a sports car, which I did NOT do, there was no fraud.'
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